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THE DECRETAL PARAGRAPH OF THE APPELLATE DECISION REMITTING THE MATTER FOR RETRIAL DID NOT IMPOSE THE CONDITIONS ON RETRIAL WHICH WERE IMPOSED BY SUPREME COURT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the decretal paragraph in the appellate decision remitting the matter to Supreme Court did not impose restrictions on the issues to be retried:

“‘A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court”‘ … . “An order or judgment entered by the lower court on a remittitur ‘must conform strictly to the remittitur'” … . The language in the decretal paragraph controls the extent of the remittitur … .

Here, there is no limiting language in the decretal paragraph of our prior decision and order that would indicate that the new trial would be on issues of apportionment of liability among the defendants. Further, there is no language in that decretal paragraph indicating that the damages awards remain undisturbed. Accordingly, the Supreme Court should not have limited the new trial to issues of apportionment of liability among the defendants. Daniele v Pain Mgt. Ctr. of Long Is., 2020 NY Slip Op 07860, Second Dept  12-23-20

 

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